Hippie Yoga Farmers vs. Internet Video Archivists

Every once in a while, something happens on the internet so bizarre, so random, and so borderline terrifying that it really makes you think about all the strange people who live out there, and what a truly horrifying yet fascinating place the world is. This is a story about one of them.

Maybe about a week ago the blog Coilhouse did a post about the website Everything Is Terrible. I hadn't heard of Everything Is Terrible before I read this post, but I've been reading Coilhouse for a while, and if you don't read it then you should, it's a really great blog about art and pop culture. Anyway, as Coilhouse describes, Everything is Terrible is a website where people link to bizarre tape-recorded videos of random strange things they found on TV. The Coilhouse post didn't really do anything more than praise the website and link to a few of the videos on it, but it was one of these videos that got them into trouble. This video was one entitled "Weird Hippie Yoga Farmers."

I wish I could show you this video. I really, really wish I could. Suffice to say that involved a guy with bleached blond hair singing cheesy kids country songs about yoga with the help of "Rasta the Rooster," a stereotypically Jamaican rooster character, both of whom taught yoga to a bunch of kids in a slightly creepy, new-agey, touchy feely way. And just for your information, I'm trying to be as unbiased as possible in this description. The reason why I can't show you this video is because the person who owned the copyright to this video was a colossal douchebag. I mean, someone trying to protect her copyright. 

Apparently, this was an edited video of clips from a late 90s show called "Ei Ei Yoga." This show starred some dude named Max Thomas, a yoga teacher working in LA, apparently a very good one. The show went nowhere and was forgotten for a while, but some nerd taped it a while back and uploaded an edited clip of it to Everything is Terrible, where everyone proceeded to make fun of it. The clip lingered on that website for a while making almost no impact, until a writer for Coilhouse found out about the website and generated traffic for it, and especially for the yoga video, which she directly embedded in the blog post. When Robin Maxwell, the wife of the Ei Ei Yoga guru, found out as a result of this increased traffic about this video making fun of her husband, she immediately pulled it from youtube and Everything is Terrible, and shortly afterwards EIT had all of their videos pulled from youtube. 

Meanwhile, a yoga website, upon seeing this video, did a post where they encouraged everyone to "make fun of the hippy dippy Ei Ei Yoga farmer." Robin Maxwell was not too pleased, and wrote a comment on this post, which led to the website doing an update. In her comment, she essentially describes Max as a saint who has great wisdom and teaches yoga to sick children. She also paints the viewers of EIT as stupid idiots who did nothing but demonize a good person, and quotes youtube comments that use insults and racial slurs as evidence of this, which is kind of unfair, since there are comments for every video on youtube that have insults and racial slurs. There are lots of other problems with her comment as well.

For one thing, she says, "[Max] was one of the first yoga teachers to acknowledge that if children were taught yoga we would be living in a much saner world," as if this is something that has been scientifically proven, and as if this even has any grain of truth to it. First of all, I've worked with children before. It's hard to get them to sit still, let alone to master yoga positions. Plus, kids could seriously get hurt doing yoga. Maybe some kids would take well to learning yoga, but definitely not all of them. Second of all, yoga is not the key to living in a saner world. That idea displays so many levels of ignorance I don't know where to begin. Yoga can't change the way a person thinks. Yoga can't change the way society functions. And if yoga involves stereotypically Jamaican roosters, I don't see how it could lead to people living in a saner world. 

That's another major issue I have: Rasta the Rooster. While Max may be a hero who feeds the bodies of criminals to starving children, I still can't forgive him for allowing Rasta the Rooster to exist. That character is nothing more than a gigantic insult. First of all, Rastafari is a religion. It's one that I don't believe in, it's one that I have a lot of issues with, but it's still a religion, and it should be shown a certain level of respect. Naming a character "Rasta" is basically the equivalent of naming a character "Jew," especially if that character talked in a stereotypically Jewish voice and had curly hair and a beard (Rasta the rooster had a fake Jamaican accent and massive dreadlocks). The inclusion of Rasta the Rooster is representative of a problem many wannabe progressives have. They are fascinated by "exotic" cultures, such as India, China, and in this case Jamaica, and appropriate the aesthetics of these cultures without knowing anything about what they really mean. I recall one time when I went to a reggae concert on a college campus. I ran into someone I knew after the show. I said something casual to him along the lines of "Hey man, did you enjoy the show?" and he replied by saying "Yeah, Jah, Rastafari!" I immediately left, thinking to myself, "Wow, you have absolutely know idea what that actually means." Rastafari is a religion. A postcolonial, nationalistic, deeply spiritual, homophobic religion. Not an image.

I also take issue with Robin's decision to shut down EIT. Her decision to pull the hippy weirdo yoga video from youtube is kind of an ethical grey area for me. Basically, I think that videos generally shouldn't be put up for free if the creator of it hasn't made much money off of it already, but that if someone uses footage in a video, any footage, they should be able to put it up as long as they cite their sources. On one hand, this video was technically not an original, since it was chopped up, so according to my ethical code it was technically ok for whoever edited it to put it up. But on the other hand, it wasn't edited that much. It was just chopped up, I wouldn't go as far as calling it a remix. It was more of a montage. Also, on one hand the crazy yoga people probably hadn't made much money off the original video already. But on the other hand, there isn't any way they would have made any more money off of it than they already did. And on one hand, whoever edited it did so in a way to make fun of someone who was probably a decent guy. But on the other hand, the show seems really creepy to begin with.

Still, getting all of EIT shut down is just not ok. Robin did not hold a copyright on every video on the website, and there were probably some videos on there that did not violate copyright. And in addition, most of these videos were remixes, and the original copyright holders would not make any money off of them anyway. As with most instances of this happening, this whole ordeal was free publicity for Max Thomas. He could have turned it into good publicity, but instead he turned it into bad publicity. This is also an instance of what Sarinee Achavanuntaku talked about in the interview Bobbicus linked to; the whole idea copyright holders have that "I'm not going to use this product I own anymore, so that means no one can ever see it."

On the other hand, I do feel that I have to criticize EIT just a tiny bit, in a little bit of a hypocritical way. As I've said before, I love making fun of stuff, but sometimes I do feel bad about the people I make fun of. Despite all of Max's cultural insensitivity, creepiness, and douchebaggery, he seems like at least somewhat of a good person. I guess I have to criticize some of the viewers in this case. It was out of line for them to call him things like a pedophile. That said, criticizing youtube comments is one of the stupidest things anyone can ever do, and EIT is definitely far more in the right here.

The only completely innocent party in this story, however, is Coilhouse, and their role is without a doubt the most fascinating one to me, largely because I'm a blogger. It's amazing in this story to see the powerful role that a relatively small blog can have. Coilhouse linked to a website that they thought was funny, and as a result the website got shut down just two days later. It amazes me that a blog post can generate that much traffic and essentially slightly change the course of the internet in such a short amount of time. This makes me feel an incredible sense of power, and makes me want to be careful about what sites I link to, and who I make fun of. Coilhouse definitely gets more traffic than us, but they're still not an insanely popular blog by any means. And if one blog post by them can get an entire website shut down, think about what better power that can be used for. 

Anyway, feel free to chime in with who you think is in the right in this story. Also, EIT will probably be back up soon, so all is not lost.

Web Clips for 6/27/09

Old-but-still-good article on frames per second in different media.

Left 4 Dead fan art here and here. And a L4D Dawn of the Dead mod.

Play some desktop blues.

Some good ol' Bartlet pwnage.

Articles and things coming.

Little Triggers Part 3

In response to the post in response to my post...

In my post on music piracy I talked about when it's ok to pirate a copy of an album, and I think that my argument can more or less apply to video games as well. As I said before, when a creator of an artwork has already profited a lot from that artwork, then non-physical copies of it should be made available for free.

And I think Square has already profited tremendously from Chrono Trigger. According to Wikipedia, "Chrono Trigger sold more than 2.36 million copies in Japan and 290,000 abroad." So while it hasn't done as well in America, it has still been very successful and Square has profited a lot from it. Because of that, at this point I think it's totally fine to download it illegally.

The argument that Square still gets harmed greatly by this because they just released a port of Chrono Trigger for the DS can also be refuted for several reasons.

1) The product which infringes on copyright is almost an entirely different game. As I said before, people won't play it as a substitute for Chrono Trigger.

2) While this game does essentially force people to pirate a copy of the original Chrono Trigger as well, this will in no way get rid of the market for the port, since it's for a unique handheld system. For this reason, it would make complete sense for a consumer to have as many as three copies of Chrono Trigger at once: the original, which might have been in their possession since it came out; a pirated ROM to play Crimson Echoes; and a DS version to carry around, and to use with special features. In fact, people could even have as many as four copies, since this actually isn't the first time Chrono Trigger has been ported; it was released for the Playstation in a pack with Final Fantasy IV. But I digress. The point is that since the port is for a portable system (no pun intended), especially one as unique as the DS, there will still be a market for it even if people use the illegal ROM to play Crimson Echoes.

3) We're talking about a port. A port of a port, for that matter. The DS version of Chrono Trigger is even less of a new game than the illegal one. I do agree that Square should profit from it, but since less work went into its creation than would have been put into an entirely new game, it's ridiculous to say that Square should profit as much as they did from the original Chrono Trigger. At most, the developers of Crimson Echoes should be forced to wait a little bit to release this game. Although that might even be too much, since the DS port has been around for a little while now.

So the main reason I think that this ROM hack is ok is because in this case, at this point, Square has had many chances to profit from the original work already. But are ROM hacks ok in every case? Well, in theory no. But in reality, I'd say that ROM hacks are OK the vast majority of the time. The reason is that, as I've said before, I think that piracy is OK after the creator has profited significantly from the artwork. And by the time that a game becomes significant enough for fan-made ROM hacks of it to be made, chances are the creators have already profited a ton. So if someone made a ROM hack tribute to World of Goo, for example, then that would be kind of fucked up. But that's way less likely to happen than someone making a ROM hack tribute to an emulated Final Fantasy game. So while in some instances ROM hacks are really harmful, those instances probably won't happen very often, and when they do they should just be taken in a case by case basis.

And I'll also say that because they involve illegal downloading, ROM hacks are definitely not the fairest way to go about making tribute games. But, I still think they should be protected legally in most cases, since it's even less fair to give excess profits a higher priority than a wide variety of art. While a ROM hack wasn't the best way to go about making Crimson Echoes, that's not justification for the entire game being destroyed. I understand why allowing its existence would set a bad legal standard for Square, since copyright laws allow companies to protect their products , and since this would chip away at the protection Square has of Chrono Trigger. But I honestly think that copyright laws give companies too much protection over their products. Just look at Mickey Mouse for proof of this. Disney has made millions and millions of dollars off of Mickey, and copyright laws still won't let his image be used by anyone else, even though Disney doesn't need this money anymore. I can understand why copyright laws give companies so much protection over their products; struggling companies absolutely need it. But already successful companies don't need this protection. Square doesn't need this protection. At least they don't need Chrono Trigger to be protected. Square and Chrono Trigger are so successful and so well established that even if this game means reduced sales for them, these reduced sales are not a threat, and even if other people use Chrono Trigger features in other artwork, they will never really be separated from Square. It's fair to give Square a little bit of this protection until they make a significant amount of money off of the DS port, at least considering what work was put into its creation. But Square does not need unlimited protection of Chrono Trigger. Even if Squaresoft were to somehow lose their copyright on Chrono Trigger (which is so incredibly unlikely), no one else would gain that copyright, which means that it would essentially be in the public domain, which it probably would be by now if Disney weren't so disgustingly protective of their copyrights, and which would still allow Square to profit from it more than anyone else. So I'll conclude by saying that while I'm not in favor of ROM hacks, I'm even less in favor of companies that have already benefited a lot from an artwork forcing people to buy that product when, quite frankly, they'll still make tons of money that they don't need. I wish that Crimson Echoes had been made in a different way, but I wish even more that it was able to exist.

Little Triggers

Greetings from Japan, everyone. As Backdoorangel stated before, I won't be posting as frequently to The Tartar Sauce for a while, while I'm in Japan. I'm still posting regularly for my new Gaikokujin Blog, but as most of the new ideas I'm getting for posts now are Japan-related, I'm reserving them for that blog. 

But, of course, whenever I get inspired to write about something unrelated to Japan, it goes straight to The Tartar Sauce, and today I stumbled upon this article. If you're feeling too lazy to read its three paragraphs, it basically says that Square Enix has just sent a cease and desist letter to the creators of Chrono Trigger: Crimson Echoes, a 35-hour game that was based on Chrono Trigger and made entirely by fans (so this post is related to Japan, but not related to my own experiences in Japan). Of course I wish this didn't happen, but if it had to happen then I wish it was during piracy week. If you read my post on music piracy, you'll know that while I'm somewhat against illegal downloading, I'm completely in favor of illegal art forms such as remixes, mash-ups, and, in this case, what could accurately be described as fan-fiction. I feel that in general as long as a consumer pays for a product, allowing the producer to profit from it, then that consumer should be able to use that product as a basis for new production. If someone obtains a recording of a song in an ethical way, then they should legally be able to make a remix of it. If someone legally reads a book (although it's pretty hard to illegally read a book), they should legally be able to make fan-fiction based on it. And, if someone legally obtains a video game, they should legally be able to hack it and make a new video game based on it. The only catch is that everyone should cite their sources when they make fan-art. Thus, culture becomes richer since amateurs are able to respond to influential artworks, and professionals are still able to profit, since people have to obtain their artworks legally, and since when sources are cited it prevents plagiarism and leads to more people finding out about the original artists. 

Therefore, I'm really sad that this new, exciting fan-art was crushed. If you read the article, you'll see that not only will the game not be released, but that its creators destroyed it. No one will ever be able to play it. Does anyone else agree with me that this is a little extreme? Especially since no one was really harmed by this fan-art being created. No one is going to play this game as a substitute for Chrono Trigger. Most of the people who play it will probably do it because they loved the original Chrono Trigger, which they have already purchased and played. And all the people who played the fan-game and not the original would certainly want to play the original afterwards. This game is not plagiarism, since it is an entirely new game. And, judging by how it was created, I bet that this game would have been released for free, or at least without DRM, so the creators wouldn't profit that much from it either. And even if they did, it would be OK, since it's not a copy of the original. This is different from someone downloading an illegal copy of Chrono Trigger. In that case, Squaresoft gets hurt. This is someone downloading a different game that was meant to be downloaded and that promotes the game it was based on. This basically would have been free publicity for Squaresoft. 

And, technically, it still is. But it's bad publicity. This cease and desist letter just makes Squaresoft look like the big bad mega-company treading on the weaker indie game developers. When I read this, I couldn't help but think of an earlier case involving two music groups, Negativland and U2. Heard of U2? Haven't heard of Negativland? Good. That's the point of this story. One time, Negativland sampled a U2 song in one of their songs, and were sued for more money than they even had. U2 didn't need the money. And they weren't harmed by the new song that Negativland made. All that happened was that while an underground band failed, U2 profited and became the epitome of corporate rock, assigning money a higher value than art. That's basically what Squaresoft is doing right now. And that's hard for me to say, since I love Squaresoft games. But I've hated on Squaresoft before and I'll do it again. My love of Squaresoft games doesn't compensate for the fact that right now they're doing something absolutely terrible, abusing their power to no good end by crushing weaker game developers.

Leonard Katzman mentioned in his post that copyright is intended to "promote the progress of science and useful arts." While you could argue that video games are not "useful," you can still see that there's a point at which copyright laws halt the progress of the arts. Copyright laws that prevent people from playing Chrono Trigger for free promote the progress of the arts, since they allow companies like Squaresoft to profit. But copyright laws that prevent people from making tribute games halt the progress of the arts in a really obvious way. At this point, copyright laws simply cause companies that are already rich to benefit while underground artists fail. This is exactly what happened with Chrono Trigger and with U2 and Negativland, and it's terrible. How does this promote the progress of the arts? It doesn't. Squaresoft wouldn't lose any money because of this tribute game (in fact, they may be losing money now that they're preventing it's creation). And even if this legal action were causing them to make more money, this still wouldn't be promoting the progress of the arts unless, for example, Squaresoft couldn't make FFXIII without the money that they were losing (which they aren't actually losing). Sorry if that argument's really convoluted, but basically what I'm trying to say is that copyright laws against remixed art-forms don't promote the progress of the arts. Instead, they stop it. Companies argue that they lose money because of remixed art, but

a) that's debatable, and

b) even if they did, they wouldn't feel it as much as remix artists who can't make their art anymore. Therefore, these laws halt the progress of the arts.

It IS possible to have it both ways. It IS possible to have copyright laws prevent illegal downloading but promote remix culture. This is the only way for copyright to truly promote the progress of the arts.

Guest Writer Leonard Katzman On Piracy and Copyright: History and the Rights of the Public Domain

The mental picture of pirates on the high seas, current events notwithstanding, brings to mind visions of centuries old battles and the taking of cold hard cash treasure. But, when you picture copyright piracy, that brings to mind visions of ......... well, to tell the truth it would be visions of centuries old battles. Copyright piracy is not remotely new. The argument over what’s yours, what’s mine and what’s ours has been around for centuries. This being The Tartar Sauce you might be asking, what does this have to do with music and video games or whatever? The answer is, everything. When you understand why we have copyright laws in the first place you then can form well-reasoned opinions about what today’s copyright laws should be. I can’t go into a long tome about copyright history because (1) I don’t have time, (2) there’s plenty of good sources on the web that cover it and (3) I don’t want to put anyone to sleep. So I’ll just touch on a few things and then get back to the present. One note of warning: if you go to a law library and look at one of the recognized treatises on copyright law you will find that they are massive multi-volume publications. Patry on Copyright (a great source) is eight very large looseleaf volumes and Nimmer on Copyright (the most widely cited source in court opinions) is eleven large looseleaf volumes. My point in saying this is that nothing I say here is complete. Copyright law is large and complex. To summarize the law is to misstate the law. Jake says his “views on music piracy aren't very simple”, and so they should not be. Copyright law is not simple. So, all the typical caveats should apply such as YMMV and IANAL (well actually I am but that’s not the point). Venture with me now, back about half a millennium. In the 1500s, Martin Luther complained bitterly about the problem of piracy. Many printers made a handsome living on pirate editions of Luther's writings. Interestingly, Martin Luther wasn’t that concerned about the loss of potential income. Instead, he was much more upset that the content of his writing wasn’t reproduced accurately and that his message ended up distorted. On the subject of printers ripping off his work, Luther said,

“these misers and thievish pirate printers handle our work faithlessly. Because in their hunger for money they do not worry themselves about whether one of their pirated texts is correct or erroneous. Often have I had to experience that a pirated text is so incorrect that in several places I could not recognize my own work.”

Imagine what Luther would think about Microsoft Songsmith. He worried that his ideas on scripture would be screwed up by careless printers. Not money, not economics, but the rights of authors to preserve the integrity of their work. There were others, however, who did complain about the money lost to authors. Jean Le Chapelier addressed the Paris Assembly on the subject in 1791. He said,

“The most sacred, most personal of all the properties, is the work fruit of the thought of a writer [...] so it is extremely just that the men who cultivate the field of thought enjoy some fruits from their work, it is essential that during their life and a few years after their death, nobody can dispose of the product of their genius, without their consent.”

So at least as far back as 1791 some folks disagreed with Jake’s position below that an artist’s work should enter the public domain upon their death. Le Chapelier thought the economic rights should last “a few years” after death. Of course, Le Chapelier had lots of unpopular ideas in the French revolutionary period, and Le Chapelier met a rather gruesome demise at the bottom of a guillotine. Championing author’s rights a century later was Victor Hugo. A prominent author in his own lifetime, Hugo was the founder and first president of the Association Littéraire et Artistique Internationale, an organization formed with the purpose of advocating for the establishment of fair laws to protect authors. Speaking of the status of things at the time, Hugo said,

“Before the publication, the author has an undeniable and unlimited right. Think of a man like Dante, Molière, Shakespeare. Imagine him at the time when he has just finished a great work. His manuscript is there, in front of him; suppose that he gets the idea to throw it into the fire; nobody can stop him. Shakespeare can destroy Hamlet, Molière Tartufe, Dante the Hell.

But as soon as the work is published, the author is not any more the master. It is then that other persons seize it: call them what you will: human spirit, public domain, society. It is such persons who say: I am here; I take this work, I do with it what I believe I have to do, [...] I possess it, it is with me from now on.”

Victor Hugo was recognizing that the rights of society, what copyright laws today call the public domain, arise as soon as authors publish their works. Exactly what that those public domain rights are, and where they must yield to the superior rights of the author, was the center of his debate and it led to the Berne Convention, an early and now widely adopted copyright law that protects the rights of authors. So, there are two distinct interests that these early thinkers identified: (1) The economic rights in a work, and (2) the rights of authors to preserve the creative integrity of their works, now more often referred to as “moral rights”. Here in the United States, the drafters of the Constitution held the prevailing English view at the time that economic rights are to be protected, but they didn’t concern themselves much with moral rights. The U.S. Constitution, drafted in 1787, grants to the Federal government the power to enact copyright laws. Article 1 Section 8 clause 8 of the states that congress, “shall have power [...] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” James Madison, in the Federalist Papers, wrote to justify the position that copyright laws are good for society and that the states should let the Federal government have that power so there would be uniformity. He wrote,

“The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”

So in the USA copyright law started out with the purpose of protecting economic rights in order “to promote the progress of science and useful arts”. Congress enacted copyright laws many times since, with major enactments in 1790, 1831, 1909, and 1976. Then, in 1989, the United States became a signatory to the Berne Convention and thereby (mostly) also adopted a set of provisions that protected moral rights. My opinions on copyright law start with the assumption that at least some degree of economic rights and moral rights are valid and should be protected by law. We need those laws. I am not an anarchist. Authors need to earn a living, they deserve credit where it’s due, and they deserve to keep others from taking their work and botching it up without permission. On the other hand, the public has rights too. For example, just because Gene Roddenberry wrote cool stories about people making treks in star ships doesn’t mean no one else can write stories about star ships travels. Of course, you probably better not name the captain “Kirk” or “Picard” and have a “Vulcan” named “Spock”. That would be bad form, not to mention illegal. But, even the rights to those characters of his creation shouldn’t last forever. West Side Story is a deliberate retelling of Romeo and Juliet. Yet, Roddenberry makes a good example, because he is dead. It is the heirs of Roddenberry that own the Star Trek estate. Jake proposes that all copyrights should die with the author. Maybe that’s right. Maybe not. What if a young musician, trying to earn a living and raise a family, creates a popular song and is then tragically hit by a bus. Jake would have his family be out of luck. Sorry, the song is in the public domain now. I see it as reasonable and proper that the law provides financial incentive to authors to create their works. Speaking for myself, I’m not working to earn a living just for my own self, but for my family too. Frankly, speaking as a parent, it’s all about the next generation. I believe the right to control an author’s work should rightly last that author’s lifetime, and then to the heirs of the author for at least a little bit. Maybe twenty years. On the ridiculous side, the law now provides rights for the life of the author plus 70 years which I think most people who aren’t copyright owners would agree is too long. I like the guidance provided by Madison. Underlying copyright laws are the purposes which they are intended to serve. As set in the Constitution, those purposes are, “to promote the progress of science and useful arts.” If a law encourages people to create music, art, literature and so on, then that law is serving a rightful purpose and should be respected. But, if a law really bears no relation to encouraging those things, then the law is wrong and should be changed. My biggest gripe about copyright law is that the major copyright holders (Sony, Disney, Warner, etc.) spend more money on lobbyists in Washington than most people earn in their lifetimes. The result is that Congress continually grants more and more rights to copyright owners and leaves less and less rights to the public domain. The worst offender was the 1998 Sonny Bono Copyright Term Extension Act which extended the term of copyrights by 20 years. What was most offensive was that the extra 20 years was applied RETROACTIVELY, so that works which were due to expire were given a new life of 20 more years. No one has yet to recite a plausible argument how adding 20 years to the rights in a creative work done in fifty years ago in any way “promotes the progress of science and useful arts”. All that happened was a giveaway to the rich corporations who were upset that the early Mickey Mouse cartoons (or their songs or their books) were about to be public domain. In most cases, the original authors were long dead. The Supreme Court’s basic logic in upholding the extension even though it isn’t consonant with the Constitution’s purposes was no more complicated than, “well... Congress has done it before lots of times so we guess it’s OK to do it again.” So the law is the law, and you can argue all you want about “justification” (as Jake put it) for breaking the law. But if you get caught breaking the law, a court doesn’t look at the justification so much, just the letter of the law. Yet, Congress keeps protecting the rights of copyright holders without remembering there are counterbalancing rights held by the public domain. We should not be looking at “justifications”. We should be looking at the underlying purposes of copyright laws and deciding whether those purposes are well served. Then we should look at the underlying purposes for preserving public domain rights and decide whether those purposes are well served and well balanced against copyright owner’s rights. Most practitioners today argue that the pendulum has swung far too much in the direction of property owners. We can try to lobby Congress to be more understanding of the necessity of striking that balance. A host of great organization engage in that lobbying on our behalf, such as the American Library Association, the Center for Democracy and Technology, the Consumer Electronics Association, Consumers Union, the Electronic Frontier Foundation, the U.S. Public Interest Research Group, and many more. Let’s hope Congress is listening to us. I’m not all that optimistic. About the only area where the public’s rights have any strength is when copyright butts up against First Amendment free speech rights. Among other virtuous uses of the First Amendment, that’s how Weird Al makes a living. For a good outcome, a win for the little guy, see the wiki page on Golan v. Holder here: http://en.wikipedia.org/wiki/Golan_v._Ashcroft. Unfortunately, it is the courts that push back on copyright law to make way for free speech instead of Congress doing the right thing by drafting laws that are balanced. And I don’t expect this new President will help at all. I’m as much of an Obama fan as you can get and I still proudly sport my two Obama/Biden bumper stickers. But, on this topic, there have been some ominous signs. Obama has nominated to top Justice Department positions several people who have been the copyright industry’s lapdogs. He nominated Donald Verrilli for associate deputy attorney general. Verrilli is the lawyer who went after Grokster, brough a suit again Google on behalf of Viacom, and (horrors!) represents the RIAA! There are other RIAA types he has nominated too, see: http://news.cnet.com/8301-13578_3-10133425-38.html for example. As for Vice President Joe Biden, he was a steadfast RIAA and MPAA ally when he was in the Senate. Sorry to end on a down note, I see things only getting worse. Industry will lobby to get stronger and stronger protections and will continue to implement stronger (and lamer) DRM. Every time a movie ends up online prior to release the MPAA will shout bloody Armageddon to Congress. Every calendar quarter that CD sales are down the RIAA will plead to Congress that their industry is Doomed unless the evil downloaders are stopped. And all we have is the EFF and the Library Association saying, now now let’s be reasonable. Maybe that anarchy thing isn’t too bad an idea after all.

Leonard Katzman is an intellectual property attorney with focus on business counsel and transactions. He is the Director of Technology Commercialization at Brown University. When not concerning himself with intellectual property legal matters, Len likes to play acoustic and electric guitar. Currently, he is trying to master the ways of Logic Studio (a non-pirated copy of course).